Modification of the Ozone Monitoring Season for Alabama, Florida, Georgia, Kentucky, Mississippi and Tennessee

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 58

[R4-9912; FRL-6237-6]

Modification of the Ozone Monitoring Season for Alabama, Florida,

Georgia, Kentucky, Mississippi and Tennessee

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending 40 CFR

part 58, appendix D, section 2.5, to lengthen the ozone monitoring

season in Alabama, Georgia, Kentucky, Mississippi and Tennessee from

April 1 through October 31 to March 1 through October 31; and to

shorten the ozone monitoring season for Florida from year round to

March 1 through October 31.

EFFECTIVE DATE: This final rule is effective on March 4, 1999.

ADDRESSES: Copies of the material relating to this rule may be examined

during normal business hours at the following locations: Environmental

Protection Agency, Sam Nunn Atlanta Federal Center, Region 4 Air

Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104;

and Office of the Federal Register, 800 North Capitol Street, NW, Suite

700, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Dick Schutt of the EPA Region 4 office

at 404/562-9033 or e-mail at ``[email protected]''.

SUPPLEMENTARY INFORMATION:

I. Background

On July 9, 1998, EPA released a new guidance document concerning

ozone monitoring season selection and modification (``Guideline for

Selecting and Modifying the Ozone Monitoring Season Based on an 8-Hour

Ozone Standard,'' July 9, 1998. EPA-454/R-98-001). This guidance

provides a basis

[[Page 10390]]

for adjusting the months in which ozone monitoring for the 8-hour ozone

National Ambient Air Quality Standard (NAAQS) is required. In the

guidance, EPA's Office for Air Quality Planning and Standards (OAQPS)

evaluated the ozone monitoring data and seasons for each state, and

provided a methodology for calculating new ozone monitoring seasons. On

October 6, 1998, EPA Region 4 notified the Region 4 States of EPA's

intent to revise the ozone monitoring season. Based on comments

received in response to that letter and additional information from

OAQPS, EPA Region 4 notified all Region 4 States, on February 18, 1999,

of the decision to revise the ozone monitoring season for Alabama,

Florida, Georgia, Kentucky, Mississippi and Tennessee and not to change

the season for North Carolina and South Carolina. The ozone monitoring

season as required by federal regulations can be found in the ``Ozone

Monitoring Season by State'' table found in 40 CFR part 58, appendix D,

section 2.5. This table is being updated by this action. Since 1990,

there has been no exceedance of the 8-hour NAAQS (0.08 ppm) in North

Carolina or South Carolina during the months of November through March.

Therefore, the ozone monitoring season remains the same for those two

States (April 1 through October 31). Since 1990, there has been no

exceedance of the 8-hour NAAQS (0.08 ppm) in Alabama, Florida, Georgia,

Kentucky, Mississippi, or Tennessee during the months of November

through February. Therefore, the monitoring season was shortened for

Florida and lengthened for Alabama, Georgia, Kentucky, Mississippi and

Tennessee.

II. Summary of Action

EPA is approving a modification to the ozone monitoring season for

Alabama, Florida, Georgia, Kentucky, Mississippi, and Tennessee. The

ozone monitoring season is being shortened for Florida from year round

to March 1-October 31. The season for Alabama, Georgia, Kentucky,

Mississippi and Tennessee is being lengthened by one month to March 1-

October 31. The season for these five States previously was April 1-

October 31. EPA Region 4 is taking this action after reviewing all

ambient ozone monitoring data 1 for all Region 4 States over

an eight season period.

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\1\ For this review EPA Region 4 used all available data as

entered into EPA's Aerometric Information Retrieval System (AIRS)

for the period 1990-1997.

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This rule will be effective March 4, 1999. EPA has determined that

today's rule falls under the ``good cause'' exemption in section

553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon

finding ``good cause,'' authorizes agencies to dispense with public

participation and section 553(d)(3) which allows an agency to make a

rule effective immediately (thereby avoiding the 30-day delayed

effective date otherwise provided for in the APA). Today's rule simply

codifies provisions which are already in effect as a matter of law in

Federal and approved State programs.

Under section 553 of the APA, an agency may find good cause where

procedures are ``impractical, unnecessary, or contrary to the public

interest.'' Public comment is ``unnecessary'' and ``contrary to the

public interest'' since the affected parties, the state agencies, have

already commented to EPA on this action. Immediate notice in the CFR

benefits the public by initiating the ozone monitoring season on March

1, 1999, rather than waiting until the 2000 monitoring season.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, Regulatory

Planning and Review.

B. Executive Order 12875

Under Executive Order 12875, Enhancing the Intergovernmental

Partnership, EPA may not issue a regulation that is not required by

statute and that creates a mandate upon a state, local or tribal

government, unless the federal government provides the funds necessary

to pay the direct compliance costs incurred by those governments, or

EPA consults with those governments. If EPA complies by consulting,

Executive Order 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local and tribal

governments to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be economically significant as defined under E.O. 12866,

and (2) concerns an environmental health or safety risk that EPA has

reason to believe may have a disproportionate effect on children. If

the regulatory action meets both criteria, the Agency must evaluate the

environmental health or safety effects of the planned rule on children,

and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency. This rule is not subject to E.O. 13045 because it is

does not involve decisions intended to mitigate environmental health or

safety risks.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian Tribal Governments, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments to provide meaningful and

timely input in the development of regulatory policies on matters that

significantly or uniquely affect their communities. Today's rule does

not significantly or uniquely affect the communities of Indian tribal

governments. Accordingly, the requirements of section 3(b) of E.O.

13084 do not apply to this rule.

[[Page 10391]]

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the federal-state relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a federal mandate that may result in estimated

annual costs to state, local, or tribal governments in the aggregate,

or to the private sector, of $100 million or more. Under section 205,

EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that this approval action does not include a

federal mandate that may result in estimated annual costs of $100

million or more to either state, local, or tribal governments in the

aggregate, or to the private sector. This federal action approves

preexisting requirements under state or local law, and imposes no new

requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. This rule is not a

``major'' rule as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by May 3, 1999. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 58

Environmental protection, Air pollution control, Ozone, Reporting

and recordkeeping requirements.

Dated: February 24, 1999.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Part 58, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 58--[AMENDED]

1. The authority citation for Part 58 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. Part 58, Appendix D, section 2.5: the table is amended by

revising the entries for Alabama, Florida, Georgia, Mississippi and

Tennessee to read as follows:

Appendix D to Part 58--Network Design for State and Local Air

Monitoring Stations (SLAMS), National Air Monitoring Stations

(NAMS), and Photochemical Assessment Monitoring Stations (PAMS)

* * * * *

2.5 Ozone (O3) Design Criteria for SLAMS

* * *

Ozone Monitoring Season by State

------------------------------------------------------------------------

State Begin month End month

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* * * * *

Alabama......................... March.............. October.

* * * * *

Florida......................... March.............. October.

Georgia......................... March.............. October.

* * * * *

Kentucky........................ March.............. October.

* * * * *

Mississippi..................... March.............. October.

* * * * *

Tennessee....................... March.............. October.

* * * * *

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[FR Doc. 99-5382 Filed 3-3-99; 8:45 am]

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